Fr Frank Brennan SJ AO
The Sydney Institute
27 May 2015
We gather on the 48th anniversary of the 1967 referendum. I am honoured to share the platform this evening with Professor Megan Davis, an Aboriginal professor of law who is one of the fresh new leaders in Indigenous Australia, one of the bold new public intellectuals in the Australian public square.
It is now more than three years since the Expert Panel set up by the Gillard Government (and of which Megan was a member) reported on how the Constitution might be amended providing recognition of Aboriginal and Torres Strait Islander peoples. The Abbott Government has been waiting for some consensus to emerge around the recommendations of the panel. Progress has been slow. No one thinks it realistic to seek a constitutional amendment during the life of this Parliament. The best to be hoped for is a commitment by all major political parties to an agreed referendum question when going into the next federal election, with the understanding that the new government and the new parliament would proceed to put a referendum to the people, perhaps on Saturday 27 May 2017, the fiftieth anniversary of the successful 1967 referendum.
Prime Minister Abbott says he is committed to completing the Constitution, rather than changing it. Now that sounds almost like a theological challenge – to complete something without changing it. There will be no amendment to the Constitution unless a broad cross section of Indigenous leaders seek it. It has been in response to Indigenous misgivings about the existing constitutional provisions that our political leaders have been prepared to consider amendments to the Constitution. No referendum will succeed unless the majority of Australians are convinced about the necessity, correctness and certainty of the proposed amendments.
The expert panel was wise when insisting that any proposed amendments:
• contribute to a more unified and reconciled nation;
• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
• be technically and legally sound.
The co-chairs of the panel, Patrick Dodson and Mark Leibler said, ‘The logical next step is to achieve full inclusion of Aboriginal and Torres Strait Islander peoples in the Constitution by recognising their continuing cultures, languages and heritage as an important part of our nation and by removing the outdated notion of race.’
At the moment, ‘the outdated notion of race’ appears in two constitutional provisions. Section 25 is a provision which has never been used and never will be. It is modeled on one of the post-civil war amendments in the US Constitution penalising states which exclude people from voting in state elections on the basis of their race. Everyone is agreed that section 25 could be simply repealed. Section 51(26) provides that the Commonwealth Parliament can make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. That section could be replaced with a new power to provide that the Commonwealth Parliament can make laws with respect to ‘the cultures, languages and heritage of the Aboriginal and Torres Strait Islander peoples and their continuing relationship with their traditional lands and waters’.
The art and statesmanship of constitutional change is in matching Indigenous aspirations, constitutional architecture, and public support. The key provisions of the Constitution cannot be thrown out of kilter. Our Constitution is still an appendix to an Act of the Imperial Parliament. It is a monarchical, not a republican, Constitution. It does not include a bill of rights. It prosaically lists the powers of the Commonwealth Parliament. The Imperial Act contains an old worldy preamble; the Constitution contains no preamble.
There has been a lot of talk about including a preamble in the Constitution. Any preamble would need to state our main national characteristics and express the key reasons for deciding to constitute and maintain the Australian federation. That would best be done, if and when, Australians decide to become a republic. The urgent need is not for a comprehensive preamble but for an acknowledgment of the assured place of Aboriginal and Torres Strait Islander peoples in our history and as part of our continuing national identity. All Australians could be surer of our distinctive national identity and place in the world if the Constitution were to acknowledge indisputable facts unique to Indigenous Australians. Adapting the language used by the expert panel and adopted unanimously by the Australian parliament, we could include an Acknowledgment at the commencement of the Constitution along these lines:
We, the people of Australia, recognise that the continent and the islands of Australia were first occupied by Aboriginal and Torres Strait Islander peoples.
We acknowledge the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.
We acknowledge and respect the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.
The expert panel suggested a constitutional ban on racial discrimination. In the absence of a bill of rights, why would we contemplate a comprehensive constitutional ban on racial discrimination by the Commonwealth and the states but not a ban on sexual discrimination or discrimination on the basis of sexual orientation or religious belief?
Anyway, a constitutional ban on racial discrimination is not as simple as it seems. When legislating for native title in 1993 and 1998, the Keating and Howard governments were unable to agree to the demand by Indigenous leaders that all provisions of the Native Title Act be strictly subject to the Racial Discrimination Act. In the Senate, the Democrats and Greens had proposed such an amendment but the major parties, in government and in opposition, agreed to oppose it because of its ‘so-called clause busting capacity’. Let’s remember that back in government, Labor twice made substantive amendments to John Howard’s Native Title Act but they dared not touch the provision casting the fragile balance between the Native Title Act and the Racial Discrimination Act. Anyone serious about a constitutional ban on racial discrimination should first clear the decks by trying to convince the major political parties to amend the Native Title Act as previously suggested by the minor parties. They would first need to convince the Business Council of Australia, the National Farmers’ Federation, and the Minerals Council of Australia to agree to native title amendments which previously were thought to put in doubt future pastoral and mining activities. Without these precautions, a constitutional guarantee of non-discrimination would be a clause buster of nuclear proportions. It’s just not on.
It’s time to learn the real lessons which followed the 1967 referendum. That referendum kick started the change from terra nullius to land rights, and from assimilation to land rights. Prime Minister Harold Holt appreciated that a modest referendum carried overwhelmingly provided the political mandate for policy changes. The catalyst for change was the Council for Aboriginal Affairs which he then set up to advise government and to engage daily with public servants and politicians when considering policy and administrative changes. Any modern equivalent would not restrict its membership to ‘three wise white men’ even of the eminence of Dr HC Coombs, Professor WEH Stanner and Barrie Dexter. Noel Pearson is right to insist that Aboriginal leaders need a place at the table when new policies are being formulated. An Indigenous council is needed to advise government. Coombs, Stanner and Dexter constantly lamented that they lacked a statutory charter setting out their role and responsibilities. Any new council would need a clear legislative mandate. I caution against tampering with the constitutional architecture, seeking the immediate inclusion of such a council in the Constitution.
Indigenous representation is always a fraught exercise. Noel Pearson rightly suggests that any Indigenous body be partly elected and partly appointed. At least in the first instance it would be impossible to design a constitutional provision for a Council which was technically and legally sound, being non-justiciable and ensuring the untramelled sovereignty of parliament.
Noel Pearson, Anne Twomey and Greg Craven have suggested in recent days that immediate constitutional inclusion of an Indigenous advisory body is possible satisfying the proviso that all aspects of its operation be non-justiciable. Professor Twomey, following the contours of the existing constitutional provisions for the now long defunct Interstate Commission, has suggested new clauses for a new Chapter 1A of the Constitution along the following lines:
60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.
(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].
(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.
(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.
Given that such a body would be at least partly elected, it is not scaremongering to point out that any elected body with a constitutional role will require judicial oversight at times if only to determine those eligible to vote and those eligible for election in disputed cases. Consider only this not altogether hypothetical. What if Jacqui Lambie in the future were to seek election to the body, or even while still a senator were to seek to cast a vote for candidates? You will recall that in her maiden speech last September she said:
I acknowledge and pay my respects to Australia's Aboriginal traditional owners. I share their blood, culture and history through my mother’s, Sue Lambie’s, family. We trace our history over six generations to celebrated Aboriginal chieftain of the Tasmania east coast, Mannalargenna.
You will recall that Mr Clyde Mansell, the Chair of Tasmanian Aboriginal Land Council, said that Senator Lambie’s claims were ‘absolutely outrageous and scandalous’: ‘They’re totally unfounded. There’s no evidence that I’m aware of that would justify Jacqui Lambie standing up in the Australian Parliament and making those claims. She didn’t have the right.’ So could Jacqui Lambie vote for the proposed constitutional entity? That question could ultimately decided only by a court.
When considering whether to include an Indigenous advisory body in the Constitution, many voters will have an eye to the past experience with ATSIC. Whatever its shortcomings, ATSIC was well resourced with a series of local and regional councils in addition to its national commissioners. The art of national Indigenous representation is matching local indigenous concerns with national policy positions ensuring that there is a two way communication between those speaking with a national voice and those working at the grassroots. A national Indigenous body without elected local and regional councils will have its work cut out in maintaining local legitimacy.
When parliamentary committees are considering proposals for legislation, they may be well assisted by receiving submissions from the Indigenous Council. No doubt they will also be attentive to local indigenous groups such as Cape York Partnerships and the various land councils, community councils, and service delivery organisations when considering legislative proposals which impact on local indigenous communities. There will be a need to consider any co-ordinating role which the Indigenous Council might play, in much the same way as ATSIC was able to help convene and resource Indigenous groups in the historic native title debates.
The Council for Aboriginal Affairs agitated for seven years for a statutory charter. In the end, the Whitlam government gave them a written charter while declining to provide a statutory basis. That Charter provided:
The Council for Aboriginal Affairs will be responsible to the Minister for Aboriginal Affairs.
The Council will act primarily as consultant and advise the Minister and the Secretary of his Department.
The Council may, with the consent of the Minister, act corporately or individually as consultant on aspects of Aboriginal affairs to:
• another Minister;
• a Parliamentary or Parliamentary Party Committee;
• NACC (National Aboriginal Consultative Committee);
• an Aboriginal community, its Council or other executive agency.
The Council will, in its deliberations, take into account the objectives set out in the Government’s policy speech of 13 November 1972 and in any subsequent statement of policy on Aboriginal affairs decided upon by the Government.
Terms of Reference
The Council will, in particular, study and report on:
• measures necessary to encourage and enable Aboriginal communities to manage their own affairs as self-determining units within Australian society generally;
• the effectiveness of current policies directed to this objective;
• the progress of Aboriginal communities towards this objective;
• such other matters as are referred to it by the Minister or with the Ministers consent.
The Council will collaborate with, and will be assisted in its studies by, the Department of Aboriginal Affairs which will provide secretarial and research services as agreed with the Council, subject to Public Service Board approval. The Council may, with the approval of the Minister, arrange for appropriate persons or organisations to carry out research, investigations or studies for it. The Council may, by arrangement with the community concerned, have access to any Aboriginal community, and the Secretary of the Department will facilitate arrangements for such access.
The Council may, with the approval of the Minister, publish reports prepared by it or the results of any research, investigation or study arranged by it.
The grunt work of the Council in effecting real change was not the periodic exchanges with members of parliament when considering changes to legislation but the daily engagement with bureaucrats seeking changes to policy and implementation. Any Indigenous Council effecting real change will need the resources to be able to engage daily with Commonwealth and state bureaucracies.
Four decades after the passage of the Northern Territory land rights legislation, and two decades after the first recognition of native titles, there are major policy issues which demand Indigenous participation at the table. Many Aboriginal communities now have title to large areas of land, but they often cry that they are land rich and dirt poor. It is time to review the balance between the security and utility of land. Aborigines want to secure their land base for future generations, but they also want to use the land now in an economical way which requires the capacity to lease, mortgage and sell some land. Remote communities need to be able to work with government determining their practical life choices, including decisions about which services are affordable in distant sparsely populated locations.
Our Constitution unamended makes no mention of Aborigines and Torres Strait Islanders. It is premised on the outdated notions of terra nullius and assimilation. It is time to modernise the Constitution, eliminating the outdated notion of ‘race’ and including an acknowledgment of the nation’s Indigenous heritage and ongoing identity. This is no small change. It is a change which is necessary, correct and certain. Indigenous leaders may want to delay such incremental change, convinced that more substantive change might be achievable in future. That is surely their prerogative. But should they seek constitutional inclusion now, an Acknowledgment and a Commonwealth power to make laws with respect to the matters acknowledged would be a principled, safe way forward to complete our Constitution.
The novel addition of an Indigenous Council to our constitutional architecture would first need to be road tested by setting it up by legislation, refining it, and then if it works, proposing it for inclusion in the Constitution at a later date. The voters will not decide to put such a council in the Constitution untested, sight unseen. Let’s remember, Australians are very cautious about constitutional change. No voter under 56 years of age has ever voted for a successful change to our Constitution. No voter under 69 years of age had the opportunity to vote for the 1967 referendum.
Our indigenous leaders are now at a fork in the road. We await their call. Either we take the short and certain path to indigenous acknowledgement, scrapping the outdated notion of race, and recasting the Commonwealth power to make laws with respect to the things acknowledged (and we could do that by May 2017), or we wait longer to take the less certain path to a more distant destination which may include an Indigenous council as part of our constitutional arrangements. That would not be achievable by May 2017.
The prudential decision for our indigenous leaders is choosing the path at this fork in the road which they prefer as their fresh starting point when they wake on the morning of 28 May 2017. Would they prefer to be working with our present Constitution which does not mention them or an amended Constitution which acknowledges them? The latter is no small change, though it is a very modest change when compared with the ultimate laudatory goals of Indigenous leaders. Not being Indigenous, I respectfully await the decision of our Indigenous leaders. Being an Australian, I will do all I can as a citizen to help set the contours for a successful referendum of acknowledgment and for more considered assessment of additional measures such as Noel Pearson’s Indigenous Constitutional Council. Like you, I will now be very interested to hear the acute insights of Professor Davis who comes with profound international experience as well as detailed knowledge of Australian proposals for constitutional recognition of Indigenous peoples.
Frank Brennan is the author of No Small Change: The Road to Recognition for Indigenous Australia (University of Queensland Press)